If You’re Going To Hit A Cop, It’s Better To Wait Until After The Cop Finds Your Gun (though it’s better still not to hit a cop in the first place)

It’s now almost unremarkable that the Fourth Circuit had a defense-friendly published opinion. Yet, on that fact, I will now remark, since the Fourth Circuit recently decided United States v. Gaines.

Driving in Baltimore

Travis Gaines was sitting in the back of a white Crown Victoria, traveling down the streets of Baltimore City. The Crown Vic drove past a police car, with three cops inside.

The police car followed the Crown Vic. The police turned on their car’s lights and pulled over the car.

Mr. Gaines, in the back seat, started shuffling around. The police said they could see him moving in the back of the car.

When the Crown Vic stopped, they pulled Mr. Gaines out of it. One of the officers did a pat down, found a gun, and yelled “gun” to the other officers. Mr. Gaines hit the cop and tried to run away. (for what it’s worth, he was convicted of assault in Maryland state court for this)

To Federal District Court We Go

Mr. Gaines was caught, and charged in federal court with being a felon in possession of a firearm.

His attorney filed a motion to suppress the gun. He argued that the car was not pulled over for a good reason and that the search of Mr. Gaines, as a result, violated his rights.

The government countered that the Crown Vic was pulled over for a good reason – that there was reasonable articulable suspicion to pull the car over.

Why was the car pulled over?

The police testified at a motions hearing that the Crown Vic was pulled over because there was a crack in the windshield.

One of the police officers, sitting in the back of the police car, testified that when he saw the Crown Vic, he noticed a small crack in the Crown Vic’s windshield from the other side of the intersection.

To put this in context, the federal district judge who decided the motion to suppress described the crack as very small and “in the lower right portion of the Crown Victoria’s windshield.”

The police said that once the first cop saw the crack, they started following the Crown Vic. Through the entire car – including the seats in the car – the other officers said that they, too, saw the crack.

The police testified that they only pulled the car over when they had all three confirmed that they saw the crack.

The district court said, in a word, hogwash. The judge refused to credit this testimony and found that there was simply no credible way to determine that the police would have been able to see that crack in the windshield. In essence, the district court decided that the cops lied. [FN1]

It appears that the police pulled the Crown Vic over, then looked for a reason why they did. Happily, the federal court rejected that approach to law enforcement.

Intervening Acts

The government, presumably wanting to stand behind police tactics even when they are based on a lie, did not stop there.

The government argued that Mr. Gaines’ assault and resisting arrest were an intervening act that were an independent basis to find the gun.

Generally, if the police pull you over when they don’t have a reason to, and you then give them a reason, you don’t get to complain about the first traffic stop.

So, to make this more concrete, assume that you get pulled over for driving the speed limit. Let’s say the police just find that suspicious. While they’re pulling you over, the passenger in your car starts shooting off fireworks out the window of the car at people walking by. You can no longer complain (successfully) about being pulled over for driving the speed limit, because your passenger gave them a good reason to pull you over.

Here, the government argued basically the same thing happened. The government argued that because Mr. Gaines assaulted the officer, they could arrest him for that and search him for the gun. If that works, then the lie-based windshield-crack search doesn’t matter.

The trouble is, Mr. Gaines hit the cop after they found the gun. So, the gun was found not as a result of Mr. Gaines’ assault, but only of the bad search.

A Side Note

It’s worth noting that this is the second Fourth Circuit opinion that’s come out this year where (a) a defendant won; (b) the case involved a Fourth Amendment issue; (c) based on police tactics by Baltimore City Police; and (d) the case was argued for the government by Maryland’s United States Attorney, Rod Rosenstein. Here’s my commentary on the other opinion.